Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying, SOR/2022-222

The Minister of Health recently made the Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying, SOR/2022-222 (the “Amending Regulations”) which will come into force on January 1, 2023. The Amending Regulations will impose a new array of procedural rules and reporting requirements relating to the provision of Medical Assistance in Dying (“MAiD”) in Canada.

THE HISTORY OF MAiD

In 2016, following the Supreme Court Canada’s landmark decision in Carter v. Canada (Attorney General), 2015 SCC 5, the Criminal Code, R.S.C., 1985, c. C-46 (the “Criminal Code”) was amended thereby making MAiD legal in Canada.  The Criminal Code requires the Minister of Health to make regulations regarding the collection of information relating to requests for, and the provision of, MAiD. In 2018 the Regulations for the Monitoring of Medical Assistance in Dying, SOR/2018-166 (the “Existing Regulations”) came into force. Subsequently, in 2021, the provisions regarding MAiD in the Criminal Code were amended. The amended legislative framework required certain information to be collected and reported by medical practitioners, nurse practitioners, preliminary assessors, pharmacists, and pharmacy technicians, when preparing for and administering MAiD. To align the Existing Regulations with the amendments to the Criminal Code, the Minister of Health made the Amending Regulations.

THE AMENDING REGULATIONS

The stated rationale for the Amending Regulations is to support Canada’s MAiD regime by allowing for enhancements to data collection and reporting to provide a more comprehensive picture of how MAiD, with expanded eligibility, is being implemented in Canada.

The Amending Regulations include several new or modified reporting requirements for data related to:

1. procedural safeguards and the length of the MAiD assessment process for persons whose natural death is not reasonably foreseeable;
2. cases where the person has been found eligible to receive MAiD but the practitioner is unable to administer MAiD due to procedural safeguards not being met;
3. the application of the waiver of final consent for persons whose natural death is reasonably foreseeable;
4. the application of advanced consent in the event of complications with self-administration;
5. the means used to ensure that the person seeking MAiD understood the information that was provided to them and communicated their decision;
6. a person’s previous requests for MAiD;
7. the length of time a person has had a serious and incurable illness, disease or disability;
8. disability support services and palliative care services received by the person seeking MAiD; and
9. gender identity, race, Indigenous identity, and disability of persons seeking MAiD, with their consent, for the stated purpose of assisting the Canadian government in determining the presence of any systemic inequality or disadvantage in the provision of MAiD.

The Amending Regulations also include a number of other significant changes to align with the recently adopted legislation, including the following:

1. reporting timelines have been lengthened to align with the longer assessment processes for persons whose natural death is not reasonably foreseeable; and
2. reporting requirements have been extended from medical practitioners, nurse practitioners and pharmacists to also include preliminary assessors and pharmacy technicians, but a medical practitioner whose involvement is limited to providing the written second opinion confirming a person’s eligibility for MAiD or who is consulted to provide expertise on the condition that is causing the person’s suffering (if the person’s death is not reasonably foreseeable) will be exempt from the reporting requirements under the Amending Regulations.

CONCLUSION

Starting January 1, 2023, enhanced data collection requirements will begin for 2023 and will be included in the federal annual report on MAiD in Canada to be released in 2024.

For any questions regarding the Amending Regulations for the Monitoring of Medical Assistance in Dying a member of our Wills + Estates team would be happy to assist you.